Attorney John Gardella  was recently interviewed by Jay Landers of ASCE’s Civil Engineering Online for his article that examines efforts by legislators and industry groups to create legislatively-created exemptions to the EPA’s proposed CERCLA regulations. Attorney Gardella was interviewed for his insights on why the carve outs are so critical to certain industries and how the EPA has thus far publicly addressed its intentions with respect to enforcement action under CERCLA.

An excerpt from the article is below:

“‘The groups are right to doubt the extent to which EPA enforcement discretion would protect them from Superfund liability for PFAS, says John Gardella, a shareholder at the law firm CMBG3 Law LLC and an attorney who specializes in PFAS litigation. The very structure of the law itself precludes the type of discretion that the EPA proposes to employ, Gardella says.

“Under CERCLA, it technically does not matter that some of the groups — waste and water —  were ‘passive receivers’ of PFAS, as CERCLA requires the EPA to pursue parties for cleanup costs on sites where designated ‘hazardous substances’ — here, PFOA and PFOS — are present,” Gardella says. “Airports, too, have historically used large quantities of PFAS via aqueous film forming foam, but the fact that they were in fact required to do so is not a strict defense if they were pursued under CERCLA,” he notes.

“While the EPA has publicly said that it intends to use its regulatory discretion to choose who to pursue or not to pursue, the fact of the matter is that, legally, CERCLA would require EPA to pursue any polluters if land was found to contain the designated hazardous substances,” Gardella says. “If EPA ignores certain sites, it would likely in turn face lawsuits from environmental groups or even private citizen groups who would allege that the EPA is not carrying out its mandates under CERCLA.'”

To view the complete article, please click here.

CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team: John Gardella.